No guns or butter for Thomas Bean: firearms disabilities and their occupational consequences.

• Author: Stavsky, Mark M.

INTRODUCTION

The last thing that Thomas Bean expected on the evening he drove across the border into Mexico for some dinner was that he would end up staying there involuntarily for the next six months. When Bean, a firearms dealer by occupation, crossed the border into Mexico, customs officials there spotted some ammunition in the back seat of his car. (1) He was arrested for and then convicted of importing ammunition into Mexico. After serving time in a Mexican prison, he was transferred to a federal prison in Texas to serve out the remainder of his sentence. (2) He served a month in federal prison; after that he served ten months under supervised release before he was completely freed. (3) As a convicted felon, Bean lost both his right to possess firearms and his firearms license. (4) He then petitioned the Bureau of Alcohol, Tobacco, and Firearms ("ATF") to restore his lost rights. (5) 18 U.S.C. [section] 925(c) gives the ATF that authority. (6) Unfortunately for Bean, since 1992 Congress has prohibited the ATF from using any of it annual appropriations to investigate requests for such relief. (7) He then sought relief in federal court. (8) One of the provisions in the relief statute gave federal judges the power to review ATF denials of relief. (9) Although the judge had no denial as such to review, he nevertheless found that the ATF's refusal to review Bean's petition amounted to a "denial." (10) After a hearing, the judge granted Bean his requested relief. (11) In reviewing the district judge's ruling, the Court of Appeals for the Fifth Circuit affirmed, ignoring the prevailing law in this area, including its own. (12) On Dec. 10, 2002, in one of its earliest decisions of the term, the Supreme Court in the case United States v. Bean overturned the Fifth Circuit; the Court ruled that a federal district court has no authority under the relief statute when the ATF has not acted. (13) "Denial" is not the same as inaction. Bean must now return to his used car business.

Bean's case is compelling for a number of reasons. The district and circuit court decisions must be accounted for, contrary as they were to prevailing law. Their decisions were driven in no small part by the concern for the unjustified imposition of a serious occupational disability upon an otherwise worthy individual, as well as the denial to him of an opportunity to demonstrate his worthiness. (14)

Further, an examination of the federal firearms disabilities scheme, the relief provision, and the appropriations ban reveal that the current system, which prevents felons like Bean from reentering their professions, is severely flawed. In particular, the appropriations ban has removed the only remaining safe haven for individuals trapped in a cumbersome process that was already riddled with inefficiency, inconsistency and inequity.

Like other collateral consequences of conviction, occupational disabilities have received increased attention lately. (15) This is due in large part to the enormous increase of individuals imprisoned in state and federal institutions. (16) With approximately 600,000 felons released annually, occupational and employment disabilities impact an unprecedented number of individuals. (17) These disabilities can be divided into three groups--unregulated occupational disabilities, regulated occupational disabilities, and secondary or derivative occupational disabilities. (18) The first group is comprised of those in which private employers choose not to hire felons on the basis of fear, animosity, or pique. (19) The other two types of disabilities are those imposed or derived from law.

Regulated occupational disabilities are comprised of specific laws that severely hamper the ability of ex-offenders to earn a livelihood since they prevent individuals from entering or remaining in certain professions, occupations, (20) and government employment. (21) These laws are endemic. (22) They are found in statutes, ordinances, and even constitutional provisions; their impact leaves many ex-offenders with little choice other than the pursuit of illegal activities. (23)

Lastly, there is a form of occupational disability which results from the secondary impact of another, non-occupational, type of disability. For example, a common disability imposed upon persons convicted of drug offenses is loss of driving privileges for a period that can extend to several years. (24) Such a disability not only prevents the ex-offender from driving generally, it also prevents him from working at the many types of jobs, which require him to drive: these include chauffer, delivery, cabdriver, etc. (25) There are even more attenuated, but nevertheless real, consequences such as being unable to drive to work where there is no public transport. Another type of disability is denial of educational loans. (26) Not only is the individual denied an opportunity to attend college, a benefit in itself, but also there is a secondary consequence to this educational disability--loss of access to employment which requires a higher education background. (27)

These derivative occupational disabilities are often more problematic and insidious than those which specifically exclude individuals from pursuing certain forms of employment. They operate haphazardly, arbitrarily, and often unintentionally; since only some felons may be subject to the primary disability, the secondary occupational consequences are based on little more then the luck of the draw. (28) Worse yet, secondary occupational disabilities, by their very nature are not specific--thus, a single non-occupational disability can exclude an individual from a number of employment opportunities. (29) By contrast, although occupational disabilities are legion, they concern specific forms of employment. (30) There may even be a nexus between the particular felony and the occupational disability. Finally, while it is debatable whether any thought goes into the enactment of occupational disability legislation, certainly little or no consideration is given to the possible secondary consequences. The critical importance of employment to successful reentry into society demands that the derivative adverse consequences of any disabilities need to be carefully considered before they are imposed.

This is essentially the type of occupational disability faced by individuals like Thomas Bean. (31) Loss of firearm privileges may not, in general, be as disabling as other types of collateral consequences--e.g., loss of public housing, (32) loss of welfare, (33) loss of child custody (34)--but this loss takes on greater significance when it impacts an ex-offender's opportunity for employment. (35) Firearms dealers are not the only individuals for whom loss of weapons privileges means an end to an occupation. (36) There are others, including peace officers and security guards. (37)

This Article will focus on the Bean case from the perspective of firearms disabilities and loss of occupational license. Part One will discuss the facts leading to Bean's conviction. Part Two will briefly outline the history of federal firearms disabilities, the relief statute, and the all-important appropriations ban. Part Three will analyze and critique the lower court decisions, in view of the significant role that Bean's loss of occupation played in their rulings. Finally, Part Four will: 1) focus on the adverse impact of Congress' decision to subvert the relief provision; and 2) reflect on the essentially incoherent nature of the entire federal firearms disabilities scheme.

PART ONE

When Thomas Bean entered Mexico, he had just left the gun show in Laredo, Texas, that he had been attending. (38) He should have been far more careful in cleaning out his car before he crossed the border. At the time Bean was arrested, there were already dozens of Americans languishing in Mexican jails or serving prison sentences in Mexican penitentiaries for bringing guns and/or ammunition across the border. (39) Mexican gun laws are far more strict than those in the United States, (40) and generally only police and military personnel are legally entitled to carry guns or possess ammunition. (41) While enforcement of these strict gun laws is designed to combat drug trafficking and armed insurgencies in Mexico, (42) many Americans caught with weapons while entering Mexico are there to hunt. (43) Although legitimate hunters can obtain permits to bring their weapons into Mexico, apparently a significant number of these individuals were unaware of this requirement. (44)

In fact, United States government officials as well as California officials made concerted efforts to warn motorists heading toward the U.S.-Mexican border about the dangers of transporting weapons into Mexico. (45) These efforts included distributing thousands of leaflets, installing highway signs, and establishing a low frequency AM channel warning of this danger. (46) In California, the California Department of Transportation spent about $18,000 in its "Guns Into Mexico ... Don't Do It" public awareness campaign. (47) Mexican officials also recognized the importance of this campaign; when the campaign was first unveiled, the Counsel General of Mexico in San Diego was one of the attendees. (48)

Thomas Bean, a resident of Port Arthur, Texas became one more statistic when he was arrested by Mexican authorities for importing ammunition. After the gun show in Laredo was over, he crossed into Nuevo Laredo, Mexico to have dinner. (49) Although he told his associates to remove all guns and ammunition from his Suburban, someone had inadvertently left approximately 200 rounds of ammunition in the back of the SUV. (50) When they were stopped at the border crossing, Mexican officials discovered the ammunition. (51)

Bean and his assistants were immediately arrested; all but Bean were soon released. (52) Bean alone was charged with the crime of introduction of ammunition into the Republic of Mexico...